dangerous the "crime!" If the language did not hit any one person it was "malice against all mankind."

8. In 1684 Sir Samuel Barnardiston was brought to trial charged with a "High Misdemeanor." He had written three private letters to be sent it was alleged-by post to his friend, also a private man. The letters do not appear designed for any further publication or use; they related to matters of news, the events of the day and comments thereon, and spoke in praise of Algernon Sidney and Lord Russell who were so wickedly beheaded about the time the letters were written. It would require a microscopic eye to detect any evil lurking there. Jeffreys presided at the trial, and told the jury:

"The letters are factious, seditious, and malicious letters, and as base as the worst of mankind could ever have invented." "And if he be guilty of it - the greater the man is the greater the crime, and the more understanding he has, the more malicious he seems to be; for your little ordinary sort of people, that are of common mean understanding, they may be wheedled and drawn in, and surprised into such things; but men of a public figure and of some value in the world that have been taken to be men of the greatest interest and reputation in a party, it cannot be thought a hidden surprise upon them; no, it is a work of time and thought, it is a thing fixed in his very nature, and it shows so much venom as would make one think the whole mass of his blood were corrupt." "Here is the matter he is now accused of, and here is in it malice against the king, malice against the government, malice against both Church and State, malice against any man that bears any share in the government, indeed malice against all mankind that are not of the same persuasion with these bloody miscreants." “Here is . . . the sainting of two horrid conspirators! Here is the Lord Russell sainted, that blessed martyr; Lord Russell, that good man, that excellent Protestant, he is lamented! And here is Mr. Sidney sainted, what an extraordinary man he was! Yes, surely he was a very good man—and it is a shame to think that such bloody miscreants should be sainted and lamented who had any hand in that horrid murder [the execution of Charles I.] and treason. . . who could confidently bless God for their being engaged in that good cause (as they call it) which was the rebellion which brought that blessed martyr to his death. It is high time for all mankind that have any Christianity, or fear of Heaven or Hell, to bestir themselves, to rid the nation of such caterpillars, such monsters of villany as those are!"

Of course the packed jury found him guilty; he was fined £10,000.1

Gentlemen of the Jury, such judges, with such kings and cabinets, have repeatedly brought the dearest rights of mankind into imminent peril. Sad indeed is the condition of a nation where Thought is not free, where the lips are sewed together, and the press is chained! Yet the evil which has ruined Spain and made an Asia Minor of Papal Italy, once threatened England. Nay, Gentlemen of the Jury, it required the greatest efforts of her noblest sons to vindicate for you and me the right to print, to speak, to think. Milton's "Speech for

17 St. Tr. 1333.

UNLICENSED PRINTING FORBIDDEN.

55

the Liberty of unlicensed Printing" is one monument of the warfare which lasted from Wicliffe to Thomas Carlyle. But other monuments are the fines and imprisonment, the exile and the beheading of men and women! Words are Words are "sedition," "rebellion," "treason;" nay, even now at least in New England, a true word is a "Misdemeanor," it is "obstructing an officer." At how great cost has our modern liberty of speech been purchased! Answer John Lilburne, answer William Prynn, and Selden, and Eliot, and Hampden, and the other noble men who

"in the public breach devoted stood,

And for their country's cause were prodigal of blood."

Answer Fox and Bunyan, and Penn and all the host of Baptists, Puritans, Quakers, martyrs, and confessors - it is by your stripes that we are healed! Healed! are we healed? Ask the court if it be not a "misdemeanor" to say so!

A despotic government hates implacably the freedom of the press. In 1680 the Lord Chief Justice of England declared the opinion of the twelve judges "indeed all subscribe that to print or publish any newsbooks, or pamphlets of news whatsoever, is illegal; that it is a manifest intent to the breach of the peace, and they may be proceeded against by law for an illegal thing." "And that is for a public notice to all people, and especially printers and booksellers, that they ought to print no book or pamphlet of news whatsoever without authority;" "they shall be punished if they do it without authority, though there is nothing reflecting on the government."1 Judge Scroggs was right-it was "resisting an officer," at least "obstructing" him in his wickedness. In England, says Lord Campbell, the name and family of Scroggs are both extinct. So much the worse for you and me, Gentlemen. The Scrogges came over to America; they settled in Massachusetts, they thrive famously in Boston; only the name is changed.

In 1731 Sir Philip Yorke, attorney-general, solemnly declared that an editor is "not to publish any thing reflecting on the character and reputation and administration of his Majesty or his Ministers;" "if he breaks that law, or exceeds that liberty of the press he is to be punished for it.” Where did he get his law-in the third year of Edward I., in A. D. 1275! But that statute of the Dark Ages was held good law in 1731; and it seems to be thought good law in 1855! And the attorney who affirmed the atrocious principle, soon became Chief Justice, a "consummate judge," a Peer, Lord Hardwicke, and Lord Chancellor!2 Lord Mansfield had not a much higher opinion of the liberty of the press; indeed, in all libel cases, he assumed it was exclusively the

17 St. Tr. 1127. 217 St. Tr. 674; 5 Campbell, 57; Hildreth's Despotism, 199.

function of the judges to determine whether the words published contained malicious or seditious matter, the jury were only to find the fact of publication. Thus the party in power with their Loughboroughs, their Thurlows, their Jeffreys, their Scroggs-shall I add also American names are the exclusive judges as to what shall be published relating to the party in power-their Loughboroughs, their Thurlows, their Jeffreys and their Scroggs, or their analogous American names! It was the free press of England - Elizabeth invoked it which drove back the "invincible Armada;" this which stayed the tide of Papal despotism; this which dyked the tyranny of Louis XIV. out from Holland. Aye, it was this which the Stuarts, with their host of attendants, sought to break down and annihilate for ever; which Thurlow and Mansfield so formidably attacked, and which now in America - but the American aspect of the matter must not now be looked in the face.

But spite of all these impediments in the way of liberty, the voice of humanity could not be forever silenced. Now and then a virtuous and high-minded judge appeared in office-like Hale or Holt, Camden or Erskine. Even in the worst times there were noble men who lifted up their voices. Let me select two examples from men not famous, but whose names, borne. by other persons, are still familiar to this court.

In 1627 Sir Robert Phillips, member for Somersetshire, in his place in Parliament, thus spoke against the advance of despotism: 3—

"I read of a custom among the old Romans, that once every year they had a solemn feast for their slaves; at which they had liberty, without exception, to speak what they would, thereby to ease their afflicted minds; which being finished, they severally returned to their former servitude. This may, with some resemblance and distinction, well set forth our present state; where now, after the revolution of some time, and grievous sufferance of many violent oppressions, we have, as those slaves had, a day of liberty of speech; but shall not, I trust, be hereafter slaves, for we are free: yet what new illegal proceedings our estates and persons have suffered under, my heart yearns to think, my tongue falters to utter. They have been well represented by divers worthy gentlemen before me; yet one grievance, and the main one, as I conceive, hath not been touched, which is our Religion: religion, Mr. Speaker, made vendible by commission, and men, for pecuniary annual rates, dispensed withal; Judgments of law against our liberty there have been three; each latter stepping forwarder than the former, upon the Rights of the Subject; aiming, in the end, to tread and trample underfoot our law, and that even in the form of law."

"The first was the Judgment of the Postnati, (the Scots,)

...

The second was the

Judgment upon Impositions, in the Exchequer Court by the barons; which hath been the source and fountain of many bitter waters of affliction unto our merchants."

20 St. Tr. 900. But see 28 St. Tr. 595, and 16 Parl. Hist. 1211.

"The

2 For the frequency of trials for words spoken in Charles II.'s reign of terror, see the extracts from Narcissus Luttrel's Brief Historical Relation, 10 St. Tr. 125.

31 Rushworth, 502.

ROBERT PHILLIPS AND PHILIP PARKER.

57

third was that fatal late Judgment against the Liberty of the Subject imprisoned by the king, argued and pronounced but by one judge alone." "I can live, although another who has no right be put to live with me; nay, I can live although I pay excises and impositions more than I do; but to have my liberty, which is the soul of my life, taken from me by power; and to have my body pent up in a gaol, without remedy by law, and to be so adjudged: O improvident ancestors! O unwise forefathers! To be so curious in providing for the quiet possession of our lands, and the liberties of Parliament; and to neglect our persons and bodies, and to let them lie in prison, and that durante bene placito, remediless! If this be law, why do we talk of liberties? Why do we trouble ourselves with a dispute about law, franchises, property of goods, and the like? What may any man call his own, if not the Liberty of his Person? I am weary of treading these ways."1

In 1641 Sir Philip Parker, Knight of the Shire for Suffolk, in his place in Parliament, thus spoke : —

"The cries of the people have come up to me; the voice of the whole nation tingles in my ears."""T is true, I confess, we have tormented ourselves with daily troubles and vexations, and have been very solicitous for the welfare of the Commonwealth; but what have we performed, what have we perfected? Mr. Speaker, excuse my zeal in this case; for my mouth cannot imprison what my mind intends to let out; neither can my tongue conceal what my heart desires to promulge. Behold the Archbishop [Laud], that great incendiary of this kingdom, lies now like a firebrand raked up in the embers; but if ever he chance to blaze again I am afraid that what heretofore he had but in a spark, he will burn down to the ground in a full flame. Wherefore let us begin, for the kingdom is pregnant with expectation on this point. I confess there are many more delinquents, for the judges and other knights walk in querpo; but they are only thunderbolts forged in Canterbury's fire."

Six of the wicked judges were soon brought to trial.3

This same threefold experiment of despotism which was attempted in England, was tried also in America by the same tyrannical hand. Here, also, the encroaching power put creatures of its arbitrary will in judicial offices; they then by perverting the laws, punished the patriots, and next proceeded to destroy the best institutions of the land itself. Here I shall take but a few examples, selected from the colonial history of our own New England.

After capturing the great fortress of freedom at home, by taking away the charter of London, Charles proceeded to destroy the freedom of the colonies; the Charter of Massachusetts was wrested from us on a quo warranto in 1683,+ and the colony lay at the feet of the

1 2 Parl. Hist. 232. See also 441, 471. He had been thrown into the Tower by James in 1624. Cabbala (3d Ed.), 311.

2 Parl. Hist. 867.

* 1 Rushworth, 502.

See the steps of the process in 1 Hutchinson, (Salem, 1795,) 297; 8 St. Tr. 1068, note.

monarch. In privy council it had already been determined that our rights should be swept into the hands of some greedy official from the court. In 1686 James II. sent Sir Edmund Andros to New England as a "Commissioner" to destroy the liberty of the people. He came to Boston in the "Kingfisher, a fifty gun ship," and brought two companies of British soldiers, the first ever stationed in this town to dragoon the people into submission to an unrighteous law. Edward Randolph, the most determined enemy of the colony, greedily caressing the despotic hands that fed him, was his chief coadjutor and assistant, his secretary, in that wicked work. Andros was authorized to appoint his own council, and with their consent enact laws, levy taxes, to organize and command the militia. He was to enforce the hateful" Acts of Trade." He appointed a council to suit the purpose of his royal master, to whom no opposition was allowed. Dudley, the new Chief Justice, told the people who appealed to Magna Charta, "they must not think the privileges of Englishmen would follow them to the end of the world." Episcopacy was introduced; no marriages were to "be allowed lawful but such as were made by the minister of the Church of England." Accordingly, all must come to Boston to be married, for there was no Episcopal minister out of its limits. It was proposed that the Puritan Churches should pay the Episcopal salary, and the Congregational worship be prohibited. He threatened to punish any man "who gave two pence toward the support of a Non-conformist minister. All fees to officers of the new government were made exorbitantly great. Only one Probate office was allowed in the Province, that was in Boston; and one of the creatures of despotic power was, prophetically, put in it. Andros altered the old form of oaths, and made the process of the courts to suit himself.

He sought to wrest the charters from the Colonies; that of Rhode Island fell into his hands; Connecticut escaped by a "miracle: "

"The Charter-Oak- it was the tree
That saved our sacred Liberty."

The Charter government of Plymouth was suspended. Massachusetts was put under arbitrary despotism. Towns were forbidden to meet, except for the choice of officers; there must be no deliberation; "discussion must be suppressed." He was to levy all the taxes; he

1 Barillon to Louis XIV. in Fox's Appendix, p. vii., et seq. In 1685 Halifax, who had been friendly to the rights of the colonies, was dismissed from his office; Sunderland, their enemy, had a pension from Louis XIV. of £5,000 or £6,000 a year; p. cxxvii., cxxx. et seq., cxliii., cxlviii. Not the last instance of a high functionary pensioned by a foreign hand!